Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Oct 31 2013, 5:35 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SEAN P. HILGENDORF GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN JAMES PORTER, )
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1303-CR-94
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R.W. Chamblee, Jr., Judge
Cause No. 71D08-1211-FC-273
October 31, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Kevin Porter (“Porter”) was convicted in St. Joseph Superior Court of Class C
felony burglary. Porter appeals and argues that the evidence is insufficient to support his
conviction.
We affirm.
Facts and Procedural History
On or about November 12, 2012, Ron’s McKinley Marathon Station (“Ron’s
Marathon”) in South Bend, Indiana was burglarized. During the burglary, the alarm
system was triggered and police officers were dispatched to the business. The front door
to the business had been pried open, and the owner’s office door, which is closed and
locked at night, was open. The owner of Ron’s Marathon told the officers that over $440
in cash and rolled coins were stolen, in addition to two counterfeit twenty dollar bills and
a novelty Bill Clinton “sex dollar bill”, which had been taped to the wall of the office.
That same night, South Bend police officers were monitoring the location of a
vehicle owned by Alvin Richards because the officers believed that he had been involved
in a series of burglaries. Pursuant to a search warrant, the officers had placed a GPS
monitoring device on the car. Between 1:20 and 1:21 a.m., the vehicle stopped in the
area of Ron’s Marathon. Minutes later, the officers received the dispatch concerning the
burglary. At 1:37 a.m., officers performed a traffic stop of Richard’s vehicle. Alvin
Richards was driving the vehicle and Porter was the only passenger.
Officer Waite, who was present at the traffic stop, returned to Ron’s Marathon and
viewed the security footage from the burglary. The surveillance video recorded two men
in the store: one man was shorter and heavier and wearing all dark clothing; the other was
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taller and thinner and wearing a gray hooded sweatshirt, gloves, dark pants, and white
tennis shoes. Officer Waite identified Richards as the shorter man and Porter as the taller
man shown in the video. During the traffic stop, the officer had observed that Porter was
wearing dark pants and white tennis shoes.
When Porter and Richards were searched incident to their arrest, Richards had
cash in his pocket and a counterfeit twenty dollar bill. Porter had $250 in cash and a pair
of gloves with “grippy dots.” Tr. p. 110. Pursuant to a warrant, the officers searched
Richards’ vehicle and found a gray hooded sweatshirt matching the description of the
sweatshirt worn by Porter during the burglary, a crowbar, and sledgehammer. In the
glove compartment, the officers found cash, rolled coins, a second counterfeit twenty
dollar bill, and a novelty Bill Clinton “sex dollar bill.”
Thereafter, Porter was charged with Class C felony burglary and with being an
habitual offender. A jury trial was held on January 29, 2013, and Porter was found guilty
as charged. The trial court ordered him to serve eight years in the Department of
Correction for the burglary conviction and enhanced that sentence by an additional
twelve years for the habitual offender adjudication. Six years of Porter’s sentence were
suspended to probation. Porter now appeals.
Discussion and Decision
Porter argues that the evidence is insufficient to support his Class C felony
burglary conviction. Upon a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of witnesses. Chappell v. State, 966
N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind.
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2005)), trans. denied. Rather, we consider only the probative evidence supporting the
conviction and the reasonable inferences to be drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable trier of fact could have
drawn the conclusion that the defendant was guilty of the crime charged beyond a
reasonable doubt, then the verdict will not be disturbed. Baumgartner v. State, 891
N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
Indiana Code section 35-43-2-1 provides that “[a] person who breaks and enters
the building or structure of another person, with the intent to commit a felony in it,
commits burglary[.]” Porter argues that the State failed to prove that he broke and
entered Ron’s Marathon with intent to commit theft therein. See Appellant’s App. p. 5.
He claims the State only proved that he was present in Richards’ vehicle shortly after the
burglary.
The State presented evidence that Richards’ vehicle was stopped near Ron’s
Marathon at approximately the same time the burglary occurred. Two men broke and
entered Ron’s Marathon. Although their faces were not clearly visible on the
surveillance video, Richards’ and Porter’s respective physical appearances matched the
men seen on the video.
Approximately fifteen minutes after the burglary was committed, police officers
initiated the traffic stop of Richards’ vehicle. Porter was wearing clothing matching that
worn by the taller man seen on the surveillance video. Although he was not wearing a
hooded sweatshirt at the time of the stop, a hooded sweatshirt matching the one seen on
the surveillance video was found in the car. During the search incident to his arrest,
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police officers discovered $250 cash in Porter’s pocket. Porter also had gloves in his
pocket that matched the gloves one of the men was wearing on the surveillance video.
Other items stolen during the burglary, including cash, rolled coins, a counterfeit twenty
dollar bill, and the Bill Clinton novelty “sex dollar bill,” were found in the glove
compartment of the car.
This evidence is sufficient to prove that Porter burglarized Ron’s Marathon.1 We
therefore affirm his conviction for Class C felony burglary.
Affirmed.
NAJAM, J., and BROWN, J., concur.
1
Porter also argues that this case should be analyzed under a theory of accomplice liability, and claims
that the State failed to prove that he aided Richards in the commission of the burglary. See Ind. Code §
35-41-2-4. However, as the evidence is sufficient to prove that Porter actively participated in the burglary,
and we need not address this additional argument.
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